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Exhibit 2.2
DATED JUNE 29, 2001
TELE.RING TELEKOM SERVICE GmbH
AS BORROWER
AND
EKOM TELECOMMUNICATIONS HOLDING AG
AS LENDER
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TERM LOAN AGREEMENT
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ATTENTION: NO ORIGINAL SIGNED
COUNTERPART OF THIS AGREEMENT MAY BE
BROUGHT INTO AUSTRIA (SEE CLAUSE 17)
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CONTENTS
CLAUSES PAGE
1. Interpretation and General................................................. 3
2. The Facility............................................................... 6
3. The Conditions............................................................. 7
4. Drawing Under the Facility................................................. 9
5. Interest and Interest Periods.............................................. 9
6. Repayment, Prepayment and Cancellation..................................... 10
7. Subordination.............................................................. 11
8. Representations and Warranties............................................. 11
9. Financial and Information Covenants........................................ 12
10. Negative Covenants........................................................ 13
11. Potential Events of Default............................................... 14
12. Payments and Calculations................................................. 15
13. Indemnities............................................................... 16
14. Taxes..................................................................... 17
15. Assignment................................................................ 17
16. Notices and Other Matters................................................. 18
17. Costs and Expenses........................................................ 19
18. Confidentiality........................................................... 20
19. Miscellaneous............................................................. 21
20. Dispute Resolution........................................................ 21
SCHEDULE 1...................................................................... 23
SCHEDULE 2...................................................................... 24
SCHEDULE 3...................................................................... 25
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THIS AGREEMENT is made on June 29, 2001
BETWEEN:
(1) TELE.RING TELEKOM SERVICE GmbH, a limited liability company established and
validly existing under the laws of Austria whose registered number at the Vienna
Commercial Court is FN 171112k (the "BORROWER"); and
(2) EKOM TELECOMMUNICATIONS HOLDING AG, a joint stock corporation established
and validly existing under the laws of Austria whose registered number at the
Upper Regional Court of Linz is FN 158908p (the "LENDER").
IT IS AGREED as follows:
1. INTERPRETATION AND GENERAL
1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"ADVANCE" means an advance, made or to be made hereunder (as from time to time
consolidated or reduced by repayment in accordance with the terms hereof);
"AGREEMENT" means this Term Loan Agreement;
"ANNUAL QUARTER" means the period commencing on October 1, 2001, and ending on
the date falling three months thereafter and each succeeding period of three
months thereafter;
"BANKING DAY" means a day (other than Saturday or Sunday) on which banks are
generally open for business in Vienna;
"BUSINESS PLAN" means the business plan set forth in Schedule 3 hereto;
"COMMITMENT" means, at any time, E330,000,000 (Euro three hundred thirty
million);
"COMMITMENT PERIOD" means the period commencing on the date of this Agreement
and ending on the earlier of:
(a) April 1, 2003; and
(b) the date on which the Loan has been drawn down in full;
"COMMITMENT TERMINATION DATE" means the last day of the Commitment Period;
"Contractual Currency" means Euro;
"DRAWDOWN DATE" means the date, being a Banking Day, on which an Advance is, or
is to be, drawn down;
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"DRAWDOWN REQUEST" means a request substantially in the form of Schedule 1
hereto;
"EVENT OF DEFAULT" means (a) any of the events and circumstances described in
Clause 11.1.4 or (b) that the Lender has given the Borrower notice that any of
the events and circumstances described in Clauses 11.1.1 through 11.1.3 has
occurred and such default remains uncured after a period of 30 days has elapsed
since such notice has been given;
"FACILITY" means the facility granted by Clause 2.;
"FIRST DRAWDOWN DATE" shall mean the Closing Date, as that term is defined in
that certain Agreement for the Sale and Purchase of all of the share quotas in
tele.ring Telekom Service GmbH, all of the Partnership Interest in tele.ring
Telekom Service GmbH & Co. KEG and for the Call Option Regarding the Sale and
Purchase of all of the share quotas in Mannesmann 3G Mobilfunk GmbH dated May 4,
2001 among Mannesmann Eurokom GmbH, EKOM Telecommunications Holding AG and EHG
Einkaufs- und Handels GmbH (the "Share Purchase Agreement" provided that in the
event that Borrower does not request an Advance on the Closing Date, the First
Drawdown Date shall be the date of the first Advance;
"INTEREST PERIOD" means, in relation to an Advance, each period for the
calculation of interest in respect of the Advance ascertained in accordance with
Clause 5.2;
"INTEREST RATE" means, in respect of any Interest Period, Euribor (as the same
may change from time to time) plus 3.5% per annum;
"LOAN" means the borrowing made under the Facility or (as the context requires)
the principal amount of that borrowing outstanding at any relevant time;
"LIQUIDATION" means an orderly, voluntary winding up of the Borrower in
accordance with Sections 89 et seq. Austrian Act on Limited Liability Companies;
"MATERIAL ADVERSE EFFECT" means any effect or change which is reasonably likely
materially and adversely to affect:
(a) the ability of the Borrower to comply with its payment obligations and/or
any of its other material obligations hereunder; and/or
(b) the validity or enforceability of this Agreement;
"PERMITTED ENCUMBRANCE" means lien, interest or encumbrance granted in
connection with an obligation described in part (a) of the definition of
Permitted Indebtedness or any mechanic's lien, tax lien or other lien arising by
operation of law provided the same is discharged in the ordinary course of
business;
"PERMITTED INDEBTEDNESS" means any indebtedness:
(a) incurred in the ordinary course of business in connection with any vendor
or other purchase money financing;
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(b) incurred in connection with a sale/lease back transaction on commercially
reasonable terms;
(c) consistent with the representation and warranty expressed in Section 8.1.3.
"POTENTIAL EVENT OF DEFAULT" means any event set forth in Clause 11.1 which may
become (with the passage of time or the giving of a notice) an Event of Default;
and
"REPAYMENT DATE" means each of July 1, 2004, July 1, 2005 and July 1, 2006 or,
if a liquidation has been commenced within 90 days after the First Drawdown
Date, the tenth (10th) anniversary of the First Drawdown Date.
1.2 HEADINGS
Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this Agreement.
1.3 INTERPRETATION
Any reference in this Agreement to:
an "AFFILIATE" means any person controlled by, who controls or who is under
common control with another person;
"CONTINUING", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in accordance with
the terms hereof and, in relation to a Potential Event of Default, one which has
not been remedied within the relevant grace period or waived in accordance with
the terms hereof;
"EURIBOR" means the rate for six month Euro deposits which appears on the
display designated on page EURIBOR 01 on the Reuters Service (or such other page
or service as may be equivalent to it for the purpose of displaying interbank
offered rates of major banks for every day it is in the Euro-Zone);
"EURO" or "E" means the single currency of the European Monetary Union as
constituted by the Treaty on the European Union and as referred to in EMU
legislation;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned company or
corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a "LAW" shall be construed as any law (including common or customary law),
statute, constitution, decree, judgment, treaty, regulation, directive, by-law,
order or any other legislative measure of any supranational, national or local
government, statutory or regulatory body or court;
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the "LENDER" or the "BORROWER" shall be construed so as to include its and any
subsequent successors and permitted transferees in accordance with their
respective interests;
a "MONTH" is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next succeeding calendar
month save that:
(a) if any such numerically corresponding day is not a Banking Day, such period
shall end on the immediately succeeding Banking Day to occur in that next
succeeding calendar month or, if none, it shall end on the immediately
preceding Banking Day (save when determining an Annual Quarter);
(b) if there is no numerically corresponding day in that next succeeding
calendar month, that period shall end on the last Banking Day in that next
succeeding calendar month;
(and references to "MONTHS" shall be construed accordingly);
a "PERSON" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) or two or more of
the foregoing;
"REPAY" (or any derivative form therefrom) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be, the
corresponding derivative form thereof);
"TAX" shall be construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the same);
"VAT" shall be construed as a reference to value added tax including any similar
tax which may be imposed in place thereof from time to time; and
1.4 AGREEMENTS AND STATUTES
Any reference in this Agreement to:
(a) this Agreement or any other agreement or document shall be construed as a
reference to this Agreement or, as the case may be, such other agreement or
document as the same may have been, or may from time to time be, amended,
varied, novated or supplemented; and
(b) a statute or treaty shall be construed as a reference to such statute or
treaty as the same may have been, or may from time to time be, amended or,
in the case of a statute, re-enacted.
2. THE FACILITY
2.1 The Lender, upon the terms and subject to the conditions hereof, and
relying upon each of the representations and warranties in Clause 8,
agrees to make
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available to the Borrower a term loan facility of up to E330,000,000.
The claims of the Lender against the Borrower under this Agreement will
rank at least pari passu with the claims of all its other unsecured
creditors save those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation or other similar laws of general
application.
Subject to Sections 3 and 4, the Lender shall make available Advances to
the Borrower for Drawdown in the aggregate amounts set forth below on
the date or during the periods indicated, less any prior Advances made:
Maximum Total Commitment
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First Drawdown Date: E75,000,000
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On or after October 1, 2001 E150,000,000
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On or after January 1, 2002 E200,000,000
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On or after April 1, 2002 E250,000,000
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On or after July 1, 2002 E300,000,000
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On or after October 1, 2002, but E330,000,000
before April 1, 2003
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which Advances shall be used for the purposes described in or
contemplated by the Business Plan. The Borrower agrees to apply all
amounts raised by it hereunder in or towards satisfaction of the
purposes of the Business Plan and the Lender shall not be obliged to
concern itself with such application.
2.2 Notwithstanding anything contained in this Agreement to the contrary,
upon the filing of a notice of Liquidation the entire undrawn portion of
the E330,000,000 Facility shall become available to the Borrower
provided such notice of Liquidation has been filed on or before October
1, 2001. Borrower may at any time or from time to time after filing such
notice request Advances through the tenth anniversary of the First
Drawdown Date up to the aggregate amount of the undrawn portion of the
Commitment, provided that Borrower shall provide evidence reasonably
satisfactory to the Lender that the Advance is being requested in order
to pay bona fide liabilities of or claims against the Borrower or to
maintain a cash balance of up to E5,000,000.
3. THE CONDITIONS
3.1 DOCUMENTS AND EVIDENCE
The obligation of the Lender to make its Commitment available shall be subject
to the condition that the Lender, or its duly authorised representative, shall
have received each of the documents and evidence specified in Schedule 2, in
each case, in form and substance reasonably satisfactory to the Lender.
3.2 DRAWDOWN CONDITIONS
The obligation of the Lender to make an Advance is subject to the further
conditions that at the date of receipt by it of each Drawdown Request and
(except in the case of Clause 3.2.6) on each Drawdown Date:
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3.2.1 the representations and warranties set out in Clause 8 are true and
correct in all material respects on and as of each such date as if made
with respect to the facts and circumstances existing at each such date;
3.2.2 no Event of Default or Potential Event of Default shall have occurred
and be continuing or would result from the making of the Advance; and
3.2.3 on a pro forma basis assuming receipt of the Advance requested in the
Drawdown Request, no insolvency or debt recomposition proceedings within
the meaning of Sections 63 et seq. Konkursordnung (Austrian Bankruptcy
Code) and Sections 1 et seq. Ausgleichsordnung (Austrian Settlement and
Recomposition of Debts Act) have been filed or should have been filed
with respect to the Borrower's assets.
3.2.4 the Lender shall not be obliged to make Advances in excess of the
amounts set forth in Clause 2., unless the Borrower has filed a notice
of liquidation or the Borrower can produce evidence, reasonably
satisfactory in form and substance to the Lender, to the effect that
Advances in excess of such amounts are required to meet its objectives
under the Business Plan;
3.2.5 it shall be lawful for the Lender to make the Advance as requested;
3.2.6 as a condition to the Advance on the First Drawdown Date only, the
Borrower shall provide documentary evidence to Lender in a manner
satisfactory to Lender that it is a 100% owned subsidiary of EHG
Einkaufs- und Handels GmbH and conditions 3.2.1 through 3.2.5 shall not
apply to the Advance to be made on the First Drawdown Date.
3.3 ADDITIONAL DRAWDOWN CONDITIONS
In case the aggregate Advances drawn under the Facility amount to more than
E250,000,000 (Euro two hundred fifty million) or a further Advance would bring
the total amount of the Loan to an amount of more than E250,000,000 (Euro two
hundred fifty million), Lender's obligation to make an Advance in excess of an
aggregate amount of E250,000,000, unless such Advance is for the Liquidation of
the Borrower and Borrower has issued a notice of liquidation, shall be subject
to the further conditions that at the date of receipt by it of each Drawdown
Request and on each Drawdown Date:
3.3.1 50 per cent of the shares in Borrower have been pledged to the Lender in
order to secure the Loan, such pledge ranking senior to any other pledge
or encumbrance;
3.3.2 all interest accrued prior to such Drawdown Request has been paid to the
Lender in full;
3.3.3 Lender has received and approved of an updated business plan of
Borrower. Lender will not unreasonably withhold approval of such updated
business plan.
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3.4 WAIVER OF CONDITIONS PRECEDENT
The conditions specified in Clauses 3.1, 3.2 and 3.3 are inserted solely for the
benefit of the Lender and may be waived by it in whole or in part in its sole
discretion and with or without conditions.
4. DRAWING UNDER THE FACILITY
4.1 DRAWING
4.1.1 Subject to the terms and conditions of this Agreement and Clause 4.1.3
an Advance shall be made to the Borrower on the Drawdown Date if:
(a) not more than ten and not less than seven Banking Days before the
proposed Drawdown Date, the Lender has received a duly completed
Drawdown Request;
(b) the proposed date for the making of the Advance is a Banking Day
within the Commitment Period;
(c) the proposed date for making the Advance is not less than seven
Banking Days after the date upon which the previous Advance (if any)
was made;
(d) in respect of the date or period in which the Drawdown Date for the
proposed Advance will occur, there will not have been, inclusive of
such proposed Advance, Advances in aggregate greater than the
amounts set forth in Clause 2.
4.1.2 To the extent that the Facility is not drawn down in full by April 1,
2003 and if no Liquidation has been commenced, any undrawn portion of
the Commitment shall thereupon be automatically reduced to zero and
cancelled.
4.1.3 Notwithstanding anything to the contrary provided in this Agreement
other than Clause 3.2.6 the first Advance in the amount of E75 million
shall be made on the First Drawdown Date.
5. INTEREST AND INTEREST PERIODS
5.1 INTEREST ON THE LOAN
Interest shall accrue on the Loan in respect of each Interest Period at the
Interest Rate and shall be paid by the Borrower on each Repayment Date with
respect to the Advances being repaid on such Repayment Date and otherwise in
accordance with the terms hereof.
5.2 INTEREST PERIODS FOR THE LOAN
The duration of each Interest Period shall be the time period between drawdown
of an Advance and the respective Repayment Date as contemplated by Clause 6.
5.3 INTEREST ON OVERDUE AMOUNTS
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If the Borrower fails to pay any sum (including, without limitation, any sum
payable pursuant to this Clause 5.3) on its due date for payment under this
Agreement, the Borrower shall pay interest on such sum from the due date up to
the date of actual payment (as well after as before judgment) at the Interest
Rate plus two per cent per annum.
6. REPAYMENT, PREPAYMENT AND CANCELLATION
6.1 REPAYMENT OF THE FACILITY
The Borrower shall repay the Loan in installments on each Repayment Date:
(a) an amount such that the Loan is reduced by one third of the amount of
the Loan outstanding on the Commitment Termination Date; plus
(b) interest accrued on the principal amount of Loan being repaid on that
Repayment Date.
6.2 OPTIONAL PREPAYMENT OF LENDER
The Borrower may, if it has given to the Lender not less than 10 Banking Days'
prior notice to that effect (without premium or penalty), prepay the Loan in
whole or part (being in a principal amount of E25,000,000 or any larger sum
which is an integral multiple of a principal E10,000,000) on the date designated
by Borrower in such notice, together with interest accrued on the amount so
prepaid. Borrower shall use commercially reasonable endeavours to refinance the
Facility within 6 months from the First Drawdown Date.
6.3 PREPAYMENTS GENERALLY
6.3.1 No prepayment may be made pursuant to this Clause 6 unless the Borrower
shall have given the Lender at least 10 Banking Days prior notice
specifying the proposed date of the prepayment and the amount to be
prepaid. Every such notice shall be effective only on actual receipt by
the Lender, shall be irrevocable and shall oblige the Borrower to make
the relevant prepayment on the date specified.
6.3.2 No amount prepaid may be reborrowed. Any amount prepaid in respect of
the Facility shall be applied in reduction of the remaining repayment
installments of the Loan in inverse order of maturity.
6.3.3 All prepayments shall be made together with (to the extent these relate
to the amounts prepaid) (a) accrued interest to the date of prepayment;
(b) any additional amounts payable under Clauses 12. to 14. (inclusive);
and (c) all other sums payable by the Borrower to the Lender under this
Agreement including, without limitation amounts payable under Clause
13.1.
6.3.4 The Borrower may not make any prepayments in respect of the Facility
save as expressly provided in this Agreement.
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7. SUBORDINATION
The Lender hereby agrees that this Facility and the Loan made hereunder is
subordinate in all respects to the amount paid for any additional shares of
capital stock of Borrower issued after the First Drawdown Date which by their
terms are senior to this Facility, in an amount not to exceed E300 million.
8. REPRESENTATIONS AND WARRANTIES
8.1 The Borrower represents and warrants to the Lender that, on each
Drawdown Date and on the last day of each Interest Period:
8.1.1 it is a corporation duly organised under the laws of Austria with power
to enter into this Agreement and to exercise its rights and perform its
obligations hereunder including to borrow and all corporate and other
action required to authorise its execution of this Agreement and its
performance of its obligations hereunder has been duly taken and no
limitation on its powers to borrow will be exceeded as a result of this
Agreement;
8.1.2 this Agreement when executed and delivered by it will constitute its
valid, legally binding and enforceable obligations in accordance with
their respective terms;
8.1.3 under the laws of Austria of organization in force at the date of this
Agreement, the claims of the Lender against it under this Agreement will
rank at least pari passu with the claims of all its other unsecured
creditors save those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation or other similar laws of general
application;
8.1.4 all acts, conditions and things required to and capable of being done,
fulfilled and performed by Borrower in order (a) to enable it lawfully
to enter into, exercise its rights under and perform and comply with the
obligations expressed to be assumed by it in this Agreement, (b) to
ensure that the obligations expressed to be assumed by it in this
Agreement are legal, valid and binding and (c) to make this Agreement
admissible in evidence in Austria have been done, fulfilled and
performed;
8.1.5 no Event of Default has occurred and is continuing;
8.1.6 it has complied in all material respects with all applicable laws and
regulations binding in each of the jurisdictions in which it is
incorporated and/or carries on business and there is no material decree
or judgment of any Government Entity of any such jurisdiction
outstanding against it;
8.1.7 every material consent, authorisation, licence or approval required by
it to ensure compliance by the Borrower with Clause 9.2.3 has been
obtained or made and is in full force and effect and there has been no
material default in the observance of the conditions or restrictions (if
any) imposed in, or in connection with, any of the same;
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8.2 Notwithstanding anything contained in this Clause 8., no representation
or warranty shall be deemed to be made by Borrower with respect to a
fact, event or circumstance, which arose or existed prior to the first
Drawdown Date even though said fact, event or circumstance continues
after the first Drawdown Date.
9. FINANCIAL AND INFORMATION COVENANTS
9.1 FINANCIAL INFORMATION
9.1.1 The Borrower shall within 90 days after the end of each quarter of each
of its financial years deliver to the Lender a certificate of Xxxxxx
Xxxxxxxx or other reputable accounting firm or a reputable independent
third party advisor reasonably acceptable to the Lender to the effect
that no Event of Default has occurred and is continuing as of such date.
9.1.2 The Borrower shall deliver the financial statements audited by an
internationally recognized firm of accountants required to be filed by
Section 277 and Section 221 HGB (Austrian Commercial Code) to the Lender
at the same time as they are required to be filed. If no such financial
statements are so required to be filed, then the Borrower shall deliver
its financial statements for such year to the independent certified
public accounting firm that is preparing an audit report with respect to
the Lender's financial statements, provided that such accounting firm
has provided to the Borrower an agreement in form reasonably
satisfactory to the Borrower to keep confidential and not to disclose to
any person, including without limitation the Lender or any affiliate of
the Lender, the Borrower's financial statements or any portion thereof,
except as necessary to justify the adjustment of the value of the Loan
made pursuant to this Agreement on the books of the Lender.
9.2 GENERAL UNDERTAKINGS
The Borrower undertakes that:
9.2.1 Use of proceeds: it will use the Loan exclusively for the purposes
described in or contemplated by the Business Plan;
9.2.2 Consents etc. relating to this Agreement: it will obtain or cause to be
obtained, maintain in full force and effect and comply in all material
respects with the conditions and restrictions (if any) imposed in, or in
connection with, every material consent, authorisation, licence or
approval of any Government Entity and do, or cause to be done, all other
acts and things, which may from time to time be required under
applicable law in order, in each case, for the obligations expressed to
have been assumed by it under this Agreement to be or to continue to be
valid, legally binding and enforceable;
9.2.3 Compliance with consents etc. relating to the business in accordance
with the Business Plan: it will obtain or cause to be obtained, maintain
in full force and effect and comply in all material respects with the
conditions and restrictions (if any) imposed in, or in connection with,
every law, regulation, agreement,
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licence and concession material to the carrying on of its business as it
is being carried on at, or is contemplated by this Agreement or the
Business Plan;
9.2.4 Tax returns: it will file or cause to be filed all tax returns required
to be filed in all jurisdictions in which it is situated or carries on
business or is otherwise subject to taxation prior to any penalties
being incurred and pay all taxes shown to be due and payable on such
returns or any assessments made against it prior to penalties being
incurred unless the liability to pay such taxes is the subject of a bona
fide dispute and it is maintaining adequate reserves in respect of such
liability.
9.3 Notwithstanding anything contained in this Clause 9., no covenant or
undertaking shall be deemed to be made by Borrower with respect to a
fact, event or circumstance which arose or existed prior to the first
Drawdown Date even though such fact, event or circumstance still exists.
9.4 Lender's Covenant: Lender covenants and agrees that until July 1, 2006
neither it nor any member of the Vodafone Group of companies shall
initiate or cause any other person to initiate bankruptcy or other
insolvency proceedings against Borrower.
10. NEGATIVE COVENANTS
The Borrower undertakes that it shall not, without the prior written consent of
the Lender:
10.1 create or permit to subsist any encumbrance over all or any part of its
present or future undertaking, assets, rights or revenues other than a
Permitted Encumbrance;
10.2 make any loans, grant any credit or give any guarantee or indemnity to
or for the benefit of any person or otherwise voluntarily assume any
liability, whether actual or contingent, in respect of any obligation of
any other person other than in the routine ordinary course of its
business;
10.3 sell, lease, convey, assign, transfer or otherwise dispose of, by one or
more transactions or series of transactions (whether related or not),
all or any part of its assets, undertakings, rights or revenues, other
than in accordance with or as contemplated by the Business Plan or in
connection with the incurrence of Permitted Indebtedness;
10.4 carry on any business other than as described in or contemplated by the
Business Plan;
10.5 own any material assets other than assets generally required to operate
its business in accordance with the Business Plan;
10.6 incur any liabilities other than Permitted Indebtedness or liabilities
in accordance with or contemplated by the Business Plan;
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10.7 pay, declare, or make any distribution, dividend or similar payment to
any of its shareholders other than management fees equal to 150% of the
costs incurred in rendering services related thereto, which do not
exceed in the aggregate E3,500,000 per year.
10.8 Notwithstanding anything contained in Clause 10., no covenant or
undertaking shall be deemed to be made by Borrower with respect to a
fact, event or circumstance that arose or existed before the First
Drawdown Date even though such fact, event or circumstance still exists.
10.9 All sales or other dispositions of significant assets of Borrower shall
be on terms at least as favourable to the Borrower as it could obtain in
an arm's-length transaction.
11. POTENTIAL EVENTS OF DEFAULT
11.1 POTENTIAL EVENTS OF DEFAULT
For the purposes of this Agreement, each of the following shall constitute a
Potential Event of Default provided the same would have a Material Adverse
Effect;
11.1.1 Non-payment: the Borrower fails to pay any sum due from it under this
Agreement, in the currency and in the manner specified herein (including
any stamp duties, costs, taxes, etc.); or
11.1.2 Breach of covenant: The Borrower commits any breach or omits to observe
any of its obligations pursuant to Clauses 9. and 10. hereunder; or
11.1.3 Breach of representation: any representation, warranty or written
statement made by the Borrower in this Agreement or in any notice or
other document, certificate or written statement delivered by it
pursuant thereto or in connection therewith is, or proves to have been,
materially incorrect or misleading when made; or
11.1.4 Borrower change of control: Western Wireless International Corporation,
a Delaware corporation, ceases to own and/or control directly or
indirectly at least a majority of the issued voting shares of the
Borrower.
11.2 ACCELERATION
The Lender may, without prejudice to any of its other rights, at any time after
the happening of an Event of Default and so long as the same is continuing or if
at any time it becomes unlawful for the Lender to perform or comply with any or
all of its obligations under this Agreement and following 180 days notice to the
Borrower of the commencement of the unlawfulness, by notice to the Borrower
declare that:
11.2.1 the obligations of the Lender to make the Facility available shall be
terminated whereupon the Commitment shall be reduced to zero forthwith;
and/or
11.2.2 the Loan and all interest and fees and all other sums payable to the
Lender under this Agreement have become due and payable on demand,
whereupon
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the same shall, immediately or in accordance with the terms of such
notice, become due and payable.
11.3 DEMAND BASIS
If the Loan has become due and payable on demand pursuant to Clause 11.2.2, the
Lender shall by written notice to the Borrower call for repayment of the Loan on
such date as may be specified in such notice whereupon, the Loan shall become
due and payable on the date so specified together with all interest accrued and
all other sums payable by the Borrower under and in connection with this
Agreement.
12. PAYMENTS AND CALCULATIONS
12.1 PAYMENTS BY BORROWER; NO SET-OFF OR COUNTERCLAIM
All payments to be made by the Borrower under this Agreement shall be made in
full, without any set-off or counterclaim whatsoever and free and clear of any
taxes, deductions or withholdings, in Euro (except for costs, charges or
expenses, which shall be payable in the currency in which they are incurred) on
the due date to account of Lender (at such bank as the Lender may from time to
time specify for this purpose).
12.2 NON-BANKING DAYS
When any payment under this Agreement would otherwise be due on a day which is
not a Banking Day, the due date for payment shall be postponed to the next
following Banking Day unless such Banking Day falls in the next calendar month
in which case payment shall be made on the immediately preceding Banking Day.
12.3 BANK ACCOUNTS
The Lender shall maintain, in accordance with its usual practices, an account or
accounts evidencing the amounts from time to time lent by, owing to and paid to
it under this Agreement including a control account showing the utilisation of
the Facility and other sums owing by the Borrower under this Agreement and all
payments in respect thereof made by the Borrower from time to time.
12.4 CALCULATIONS
All interest and other payments of an annual nature under this Agreement shall
accrue from day to day and be calculated on the basis of actual days elapsed and
a 360 day year. In calculating the actual number of days elapsed in a period
which is one of a series of consecutive periods with no interval between them or
a period on the last day of which any payment falls to be made in respect of
such period, the first day of such period shall be included but the last day
excluded.
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13. INDEMNITIES
13.1 MISCELLANEOUS INDEMNITIES
Except as provided in clause 17.4, the Borrower shall within five Banking Days
of demand indemnify the Lender, without prejudice to any of the Lender's other
rights under this Agreement, against any reasonable cost, claim, expense
(including legal fees) or any liability or any loss, together with any VAT on
any of them, whether or not reasonably foreseeable sustained or incurred by it
as a consequence of:
(a) any Potential Event of Default in payment by the Borrower of any sum
under this Agreement when due; or
(b) the occurrence of any other Event or Default; or
(c) without prejudice to any other provisions hereof, any stamp duties or
similar amounts payable on or in connection with the first E250,000,000
of Advances drawn hereunder.
13.2 CURRENCY OF ACCOUNT; CURRENCY INDEMNITY
No payment by the Borrower under this Agreement which is made in a currency
other than the currency ("Contractual Currency") in which such payment is
required to be made pursuant to this Agreement shall discharge the obligation in
respect of which it is made except to the extent of the net proceeds in the
Contractual Currency received by the Lender, as the case may be, upon the sale
of the currency so received, after taking into account any commissions and costs
of exchange in connection with such sale. For the avoidance of doubt the Lender
shall not be obliged to accept any such payment in a currency other than the
Contractual Currency nor shall the Lender be liable to the Borrower for any loss
or alleged loss arising from fluctuations in exchange rates between the date on
which such payment is so received by the Lender and the date on which the Lender
effects such sale, as to which the Lender shall (as against Borrower) have an
absolute discretion. If any sum due from the Borrower under this Agreement or
any order of judgment given or made in relation hereto is required to be
converted from the Contractual Currency or the currency in which the same is
payable under such order or judgment (the "first currency") into another
currency (the "second currency") for the purpose of (a) making or filing a claim
or proof against the Borrower, (b) obtaining an order or judgment in any court
or other tribunal or (c) enforcing any order or judgment given or made in
relation to obligations hereunder, the Borrower shall indemnify and hold
harmless the Lender from and against any loss suffered as a result of any
difference between (i) the rate of exchange used for such purpose to convert the
sum in question from the first currency into the second currency and (ii) the
rate or rates of exchange at which the Lender may in the ordinary course of
business purchase the first currency with the second currency upon receipt of a
sum paid to it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof. Any amount due from the Borrower under the indemnity
contained in this Clause 13.2 shall be due as a separate debt and shall not be
affected by judgment being obtained for any other sums due under or in respect
of this Agreement and the term "rate of exchange" includes any commission and
costs of exchange payable in connection with the purchase of the first currency
with the second currency.
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14. TAXES
14.1 GROSSING-UP FOR TAXES
If at any time the Borrower is required to make any deduction or withholding in
respect of taxes from any payment due under this Agreement for the account of
the Lender (or if the Lender is required to make any such deduction or
withholding from any payment it receives hereunder), the sum due from the
Borrower in respect of such payment shall be increased to the extent necessary
to ensure that, after the making of such deduction or withholding, the Lender
receives on the due date for such payment (and retains, free from any liability
in respect of such deduction or withholding) a net sum equal to the sum which it
would have received had no such deduction or withholding been required to be
made and the Borrower shall indemnify the Lender against any losses or costs
incurred by it by reason of any failure of the Borrower to make any such
deduction or withholding or by reason of any increased payment not being made on
the due date for such payment. The Borrower shall promptly upon request deliver
to the Lender any receipts, certificates or other proof evidencing the amounts
(if any) paid or payable in respect of any such deduction or withholding.
14.2 TAX INDEMNITY
Without prejudice to Clauses 14.1 and 17.2, if the Lender is required to make
any payment of or on account of tax on or in relation to any sum received or
receivable under this Agreement (including any sum deemed for purposes of tax to
be received or receivable by the Lender whether or not actually received or
receivable) or if any liability in respect of any such payment is asserted,
imposed, levied or assessed against the Lender (excluding taxes or taxation on
the overall net income, profits or gains of the Lender imposed in the
jurisdiction in which it is located), the Borrower shall, upon demand by the
Lender, promptly indemnify the Lender against such loss or liability suffered as
a result against such payment or liability together with any interest,
penalties, costs and expenses payable or incurred in connection therewith.
15. ASSIGNMENT
15.1 BENEFIT AND BURDEN
This Agreement shall be binding upon, and inure for the benefit of, the Lender
and the Borrower and their respective successors.
15.2 NO ASSIGNMENT BY EITHER PARTY
Neither the Borrower nor the Lender may assign or otherwise transfer any of its
rights or obligations under this Agreement without the prior written consent of
the other Party.
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16. NOTICES AND OTHER MATTERS
16.1 ADDRESS FOR NOTICES
Every notice, request, demand or other communication (each a "Communication")
under this Agreement shall:
16.1.1 be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
16.1.2 be deemed to have been received in the case of any Communication to the
Lender, when actually received at its address or telefax number (marked
for the attention of the person specified below or as otherwise notified
to the other parties as provided below) for the time being under this
Agreement and as regards any Communication to the Borrower, in the case
of a letter, when delivered personally or 5 days after it has been put
into the post and, in the case of a telefax, when a complete legible
copy is received by the addressee (unless the time of despatch of any
telefax is after close of business in which case it shall be deemed to
have been received at the opening of business on the next business day);
and be sent:
(a) to the Borrower at:
c/o Western Wireless International Corporation
0000 000xx Xxxxxx X.X.,
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Telefax: (000) 000-0000
copy to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx, L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx XX 00000
Attn: Xxxxx Xxxxxxx
Telefax: (000) 000-0000
(b) to the Lender at:
EKOM Telecommunications Holding AG
x/x Xxxxxxxxxx XX
Xxxxxxxxxxxxxx 0
X-00000 Xxxxxxxxxx
Attn: Xxxxxxxxx Xxxxxx
Telefax: 0049 211 8202888
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or to such other address or telefax number as is notified by the Borrower or the
Lender, as the case may be, to each other.
16.2 NO IMPLIED WAIVER, REMEDIES CUMULATIVE
No failure or delay on the part of the Lender to exercise any power, right or
remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise by the Lender of any power, right or remedy preclude
any other or further exercise thereof or the exercise of any other power, right
or remedy. The remedies provided in this Agreement are cumulative and are not
exclusive of any remedies provided by law.
16.3 ENGLISH TRANSLATIONS
All certificates, instruments and other documents to be delivered under or
supplied in connection with this Agreement shall be in the English language or
shall be accompanied by a certified English translation upon which the Lender
shall be entitled to rely.
16.4 SEVERABILITY
Should any provision of this Agreement be or become wholly or in part invalid or
unenforceable, the validity and enforceability of all remaining provisions of
this Agreement shall not be affected thereby. The invalid or unenforceable
provision shall be deemed replaced by such valid and enforceable provision,
which serves best the economic interests of the Parties originally pursued with
the invalid or unenforceable provision. The same shall apply in case of an
omission in this Agreement.
17. COSTS AND EXPENSES
17.1 The Borrower shall, from time to time on demand of the Lender, reimburse
the Lender for all reasonable costs and expenses (including legal fees)
on a full indemnity basis together with any VAT thereon incurred in or
in connection with the preservation and/or enforcement of any of the
rights of the Lender under this Agreement and any other document
referred to in this Agreement.
17.2 Except as provided in clause 17.4, the Borrower shall pay all stamp,
registration and other taxes to which this Agreement, any other document
referred to in this Agreement or any judgment given in connection
therewith is or at any time may be subject in connection with the first
E250,000,000 of Advances drawn under this Agreement, and shall, from
time to time on demand of the Lender, indemnify the Lender against any
liabilities, costs, claims and expenses resulting from any failure to
pay or any delay in paying any such tax. The Lender shall pay all stamp,
registration and other taxes to which this Agreement, any other document
referred to in this Agreement or any judgment given in connection
therewith is or at any time may be subject in connection with Advances
drawn after the first E250,000,000 of Advances drawn under this
Agreement, and shall, from time to time on demand of the Lender,
indemnify the Lender against any liabilities, costs, claims and expenses
resulting from any failure to pay or any delay in paying any such tax.
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17.3 If the Borrower requests any amendment, waiver or consent then the
Borrower shall, within five Business Days of demand by the Lender,
reimburse the Lender for all reasonable costs and expenses (including
legal fees) together with any VAT thereon incurred by the Lender in
responding to or complying with such request.
17.4 No original copy of this document shall be brought into Austria unless a
legal requirement to do so exists. Any party hereto who either brings
its original copy of this document into Austria, or permits its original
copy to be so brought into Austria, in violation of the foregoing shall
be solely responsible for any and all consequences with respect to
Austrian stamp duty legislation and shall indemnify the other party for
and against any and all such consequences.
18. CONFIDENTIALITY
18.1 Subject to Clause 18.2, each party hereto shall treat as strictly
confidential all information received or obtained as a result of
entering into or performing this Agreement which relates to:
18.1.1 the provisions of this Agreement;
18.1.2 the negotiations relating to this Agreement;
18.1.3 the subject matter of this Agreement; or
18.1.4 the other party.
18.2 Any party or any affiliate of any party hereto may disclose information
which would otherwise be confidential if and to the extent:
18.2.1 required by the law of any relevant jurisdiction;
18.2.2 required by any securities exchange or regulatory or governmental body
to which either party or any affiliate of any party is subject or
submits, wherever situated, whether or not the requirement for
information has the force of law;
18.2.3 disclosed in connection with any suit, action or proceeding relating to
the enforcement of its rights hereunder;
18.2.4 disclosed to the professional advisers, auditors and bankers of each
party or any affiliate of any party hereto, provided that such persons
agree to keep such information confidential except for ordinary and
customary exceptions in accordance with the rules of conduct applying to
such persons;
18.2.5 the information has come into the public domain through no fault of that
party; or
18.2.6 the other party has given prior written approval to the disclosure, such
approval not to be unreasonably withheld or delayed,
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provided that any such information disclosed pursuant to Clauses 18.2.1
through 18.2.4 shall be disclosed only after notice to the other party.
18.3 The provisions of this Clause 18. shall remain operative and in full
force and effect regardless of the expiration and term of this
Agreement.
19. MISCELLANEOUS
19.1 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so executed and
delivered shall be an original, but all counterparts shall together constitute
one and the same instrument.
19.2 GOVERNING LAW
This Agreement shall be governed by the laws of Austria.
19.3 DEEMED LOCATION OF PERFORMANCE
The Parties acknowledge that this Agreement shall be deemed to require
performance solely within the territory of Germany.
20. DISPUTE RESOLUTION
20.1 In the event of any dispute, controversy or claim arising out of or in
connection with this Agreement (including any schedule or attachment
hereto) or the breach, termination or validity of this Agreement, the
Parties shall use all reasonable endeavours to resolve the matter on an
amicable basis. If one Party serves formal written notice on the other
Party or Parties that a material dispute, controversy or claim of such a
description has arisen and the Parties are unable to resolve the dispute
within a period of thirty (30) days from the service of such notice,
then the dispute, controversy or claim shall be referred to the
respective senior executives of the Borrowers and the Lender. No
recourse to arbitration by one Party against the other Party or Parties
under this Agreement shall take place unless and until such procedure
has been followed.
20.2 If the senior executives of the Borrower and the Lender shall have been
unable to resolve any dispute, controversy or claim referred to them
under Clause 20.1 within a period of ten (10) days from referral to the
senior executives, that dispute, controversy or claim shall be referred
to and finally settled by arbitration under and in accordance with the
Rules of Arbitration of the International Chamber of Commerce by three
arbitrators appointed in accordance with those rules. The place of
arbitration shall be Zurich, Switzerland. The arbitration proceedings
shall be conducted, and the award shall be rendered, in the English
language.
20.3 The Parties hereby waive any rights of application and appeal to any
court or tribunal of competent jurisdiction (including without
limitation the courts of
00
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Xxxxxxx, Xxxxxxx, Xxxxxxxxxxx, and England) to the fullest extent
permitted by law in connection with any question of law arising in the
course of the arbitration or with respect to any award made except for
actions relating to enforcement of the arbitration agreement or an
arbitral award and except for actions seeking interim or other
provisional relief in aid of arbitration in any court of competent
jurisdiction.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
BORROWER
SIGNED for and on behalf of )
TELE.RING TELEKOM SERVICE GmbH )
by: /s/ )
LENDER
SIGNED for and on behalf of )
EKOM TELECOMMUNICATIONS HOLDING AG )
by: /s/ )
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SCHEDULE 1
FORM OF DRAWDOWN REQUEST
From: [Borrower]
To: [Lender]
Dated:
Dear Sirs,
1. We refer to the agreement (the "AGREEMENT") dated [ ] 2001 made between
[Borrower] as borrower, and [Lender] as Lender. Terms defined in the
Loan Agreement shall have the same meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Agreement and on the
[date of the proposed Advance], we wish to borrow an Advance of E[ ]
upon the terms and subject to the conditions contained therein.
4. We confirm that, as at the date hereof, no Event of Default or Potential
Event of Default has occurred and is continuing or would occur as a
result of the making of the proposed Advance.
5. The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully,
..............................
Authorised Signatory
for and on behalf of
[Borrower]
Attachment: Schedule of proposed expenditures
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SCHEDULE 2
CONDITIONS PRECEDENT
1. In relation to the Borrower:
(a) a copy, certified as at the date of this Agreement or a true and
up-to-date copy by an authorised signatory of the Borrower, of
the articles of association of the Borrower;
(b) a copy, certified as at the date of this Agreement or a true and
up-to-date copy by an authorised signatory of the Borrower, of a
board resolution of the Borrower approving the execution,
delivery and performance of the Agreement and the terms and
conditions thereof and authorising a named person or persons to
sign the Agreement and any documents to be delivered by the
Borrower pursuant thereto;
(c) a certificate of an authorised signatory of the Borrower setting
out the names and signatures of the persons authorised to sign,
on behalf of it, the Agreement and any documents to be delivered
by the Borrower pursuant thereto; and
(d) a certificate of an authorised signatory of the Borrower
confirming that utilisation of the Facility would not breach any
restriction on its borrowing powers.
A binding declaration signed by one or more authorised signatories of the
Borrower confirming that any amount drawn under this Agreement will be spent
exclusively for purposes consistent with the Business Plan.
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SCHEDULE 3
BUSINESS PLAN
The construction, operation and management of all or any of the following
businesses within Austria:
(a) a mobile telecommunications business;
(b) a fixed line telecommunications business; and
(c) an Internet service business;
provided that such business activities may include from time to time (i) the
expansion and/or contraction of any such business or businesses, (ii) the
purchase and/or sale of assets relating to any such business or businesses,
(iii) all costs and expenses including but not limited to professional fees
associated with the investigation, negotiation and execution of this Agreement
and Share Purchase Agreement and (iv) the Liquidation of the Borrower if
commenced on or before October 1, 2001; and with respect to the implementation
of the foregoing activities the raising of funds related thereto. Prior to full
repayment of the Loan and all accrued interest, Borrower will make no
acquisitions of other such businesses or engage in transactions with similar
effect without Lender's approval. Lender shall not unreasonably withhold its
approval.
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